Taking and Importing Marine Mammals; U.S. Navy Training in the Southern California Range Complex, 3882-3918 [E9-1073]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 74, Number 12 (Wednesday, January 21, 2009)]
[Rules and Regulations]
[Pages 3882-3918]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-1073]



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Part V





Department of Commerce





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 National Oceanic and Atmospheric Administration



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50 CFR Part 216



Taking and Importing Marine Mammals; U.S. Navy Training in the Southern 
California Range Complex; Final Rule

Federal Register / Vol. 74, No. 12 / Wednesday, January 21, 2009 / 
Rules and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 0808061069-81583-02]
RIN 0648-AW91


Taking and Importing Marine Mammals; U.S. Navy Training in the 
Southern California Range Complex

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS, upon application from the U.S. Navy (Navy), is issuing 
regulations to govern the unintentional taking of marine mammals 
incidental to training, maintenance, and research, development, testing 
and evaluation (RDT&E) activities conducted in the Southern California 
Range Complex (SOCAL Range Complex), which extends south and southwest 
off the southern California coast, for the period of January 2009 
through January 2014. The Navy's activities are considered military 
readiness activities pursuant to the Marine Mammal Protection Act 
(MMPA), as amended by the National Defense Authorization Act for Fiscal 
Year 2004 (NDAA). These regulations, which allow for the issuance of 
``Letters of Authorization'' (LOAs) for the incidental take of marine 
mammals during the described activities and specified timeframes, 
prescribe the permissible methods of taking and other means of 
affecting the least practicable adverse impact on marine mammal species 
and their habitat, as well as requirements pertaining to the monitoring 
and reporting of such taking.

DATES: Effective January 14, 2009 through January 14, 2014.

ADDRESSES: A copy of the Navy's application (which contains a list of 
the references used in this document), NMFS' Record of Decision (ROD), 
and other documents cited herein, may be obtained by writing to Michael 
Payne, Chief, Permits, Conservation and Education Division, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910-3225 or by telephone via the contact 
listed here (see FOR FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT: Jolie Harrison, Office of Protected 
Resources, NMFS, (301) 713-2289, ext. 166.

SUPPLEMENTARY INFORMATION: Extensive supplementary information was 
provided in the proposed rule for this activity, which was published in 
the Federal Register on Tuesday, October 14, 2008 (73 FR 60836). This 
information will not be reprinted here in its entirety; rather, all 
sections from the proposed rule will be represented herein and will 
contain either a summary of the material presented in the proposed rule 
or a note referencing the page(s) in the proposed rule where the 
information may be found. Any information that has changed since the 
proposed rule was published will be addressed herein. Additionally, 
this final rule contains a section that responds to the comments 
received during the public comment period.

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce (Secretary) to allow, upon request, 
the incidental, but not intentional taking of marine mammals by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) during periods of not more than five consecutive years each if 
certain findings are made and regulations are issued or, if the taking 
is limited to harassment and of no more than 1 year, the Secretary 
shall issue a notice of proposed authorization for public review.
    Authorization shall be granted if NMFS finds that the taking will 
have a negligible impact on the species or stock(s), will not have an 
unmitigable adverse impact on the availability of the species or 
stock(s) for subsistence uses, and if the permissible methods of taking 
and requirements pertaining to the mitigation, monitoring and reporting 
of such taking are set forth.
    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as:

An impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.

    The NDAA (Pub. L. 108-136) removed the ``small numbers'' and 
``specified geographical region'' limitations and amended the 
definition of ``harassment'' as it applies to a ``military readiness 
activity'' to read as follows (Section 3(18)(B) of the MMPA):

    (i) Any act that injures or has the significant potential to 
injure a marine mammal or marine mammal stock in the wild [Level A 
Harassment]; or
    (ii) Any act that disturbs or is likely to disturb a marine 
mammal or marine mammal stock in the wild by causing disruption of 
natural behavioral patterns, including, but not limited to, 
migration, surfacing, nursing, breeding, feeding, or sheltering, to 
a point where such behavioral patterns are abandoned or 
significantly altered [Level B Harassment].

Summary of Request

    On April 1, 2008, NMFS received an application from the Navy 
requesting authorization for the take of individuals of 37 species of 
marine mammals incidental to upcoming Navy training activities, 
maintenance, and research, development, testing, and evaluation (RDT&E) 
activities to be conducted within the SOCAL Range Complex, which 
extends southwest approximately 600 nm in the general shape of a 200-nm 
wide rectangle (see the Navy's application), over the course of 5 
years. These activities are military readiness activities under the 
provisions of the NDAA. The Navy states, and NMFS concurs, that these 
military readiness activities may incidentally take marine mammals 
present within the SOCAL Range Complex by exposing them to sound from 
mid-frequency or high frequency active sonar (MFAS/HFAS) or underwater 
detonations. The Navy requests authorization to take individuals of 37 
species of marine mammals by Level B Harassment. Further, though they 
do not anticipate it to occur, the Navy requests authorization to take, 
by injury or mortality, up to 10 beaked whales over the course of the 
5-yr period for which the regulations will be in effect.

Background of Navy Request

    The proposed rule contains a description of the Navy's mission, 
their responsibilities pursuant to Title 10 of the United States Code, 
and the specific purpose and need for the activities for which they 
requested incidental take authorization. The description contained in 
the proposed rule has not changed. See 73 FR 60836.

Overview of the SOCAL Range Complex

    The proposed rule contains an overview of the SOCAL Range Complex 
that describes the SOCAL Operational Areas (OPAREAS), the Special Use 
Airspaces, San Clemente Island, and the overlap with Point Mugu Sea 
Range for certain anti-submarine warfare (ASW) training. The 
description contained in the proposed rule has not changed. See 73 FR 
60836, page 60837.

Description of the Specified Activities

    The proposed rule contains a complete description of the Navy's 
specified activities that are covered by these final regulations, and 
for which the associated incidental take of marine mammals will be 
authorized in the related LOAs. The proposed rule

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describes the nature of the activities involving both mid and high-
frequency active sonar (MFAS and HFAS) and explosive detonations, as 
well as the MFAS and HFAS sound sources and explosive types. See 73 FR 
60836, pages 60837-60847. The narrative description of the action 
contained in the proposed rule has not changed, with the exception of 
the change from IEER to AEER described in the paragraph below. Tables 
1, 2, and 3 summarize the sonar and explosive exercise types used in 
the Navy's activities and hours of sonar operation conducted.
    The Navy is developing the Advanced Extended Echo Ranging (AEER) 
system as a replacement to the IEER system. AEER would use a new active 
sonobuoy (AN/SSQ-125) that utilizes a tonal (or a sonar ping) vice 
impulsive (or explosive) sound source as a replacement for the SSQ-110A 
(the system used in IEER). AEER will still use the ADAR sonobuoy as the 
systems receiver and be deployed by Marine Patrol Aircraft. As AEER is 
introduced for Fleet use, IEER will be removed. The same total number 
of buoys will be deployed as were presented in the proposed rule, but a 
subset of them will be AEER instead of IEER. The small difference in 
the number of anticipated marine mammal takes that will result from 
this change is indicated in the take table, along with other minor 
modifications. This small change in the take numbers did not affect 
NMFS' analysis of and conclusions regarding the proposed action.
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Description of Marine Mammals in the Area of the Specified Activities

    There are 41 marine mammal species with possible or confirmed 
occurrence in the SOCAL Range Complex. Nine marine mammal species 
listed as federally endangered under the Endangered Species Act (ESA) 
can occur in the SOCAL Range Complex: The humpback whale, North Pacific 
right whale, sei whale, fin whale, blue whale, sperm whale, southern 
resident killer whale, Guadalupe fur seal, and Steller sea lion. The 
proposed rule contains a discussion of three species that are not 
considered further in the analysis (southern resident killer whale, 
North Pacific right whale, and Steller sea lion) because of their 
rarity in the SOCAL Range Complex. With the exception of marine mammal 
abundance and Steller sea lion correction discussed below, the 
Description of Marine Mammals in the Area of the Specified Activities 
in the proposed rule remains unchanged (see 73 FR 60836, pages 60846-
60850).
    For this rulemaking and subsequent LOA, NMFS' Southwest Fisheries 
Science Center calculated marine mammal density estimates based on 
compiled densities from vessel surveys conducted from 1986 to 2005, and 
provided it to the Navy as Government Furnished Information (GFI). 
These density estimates are included in Table 4 and remain unchanged 
from the proposed rule. The proposed rule contains a description of the 
methods used to estimate density. During the public comment period for 
the proposed rule, several members of the public noted and commented 
that the abundance numbers provided for some marine mammal species were 
not from the latest NMFS stock assessment reports. Those numbers have 
been updated in Table 4, which now includes the abundance estimates 
from both the 2007 stock assessment reports and the draft 2008 reports. 
This correction did not affect NMFS analysis, as take estimates are 
based on density estimates (not abundance estimates), which remain 
unchanged from those presented in the proposed rule.
    The proposed rule indicated (73 FR 60836, page 60849) that the last 
sighting of a Steller sea lion in Southern California was that of a sub 
adult male that was briefly on San Miguel Island in 1998. In fact, a 
Steller sea lion was sighted in Newport Harbor in April 2008 and a 
Steller sea lion (that may have been the same individual) live stranded 
in Santa Barbara in the summer of 2008. This correction did not affect 
NMFS analysis and, as indicated in the proposed rule, Steller sea lions 
are not likely to be present in the action area or taken by the Navy's 
specified activities.

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A Brief Background on Sound

    The proposed rule contains a section that provides a brief 
background on the principles of sound that are frequently referred to 
in this rulemaking. See 73 FR 60836, pages 60850-60851. This section 
also includes a discussion of the functional hearing ranges of the 
different groups of marine mammals (by frequency) as well as a 
discussion of the two main sound metrics used in NMFS analysis (sound 
pressure level (SPL) and sound energy level (SEL)). The information 
contained in the proposed rule has not changed.

Potential Effects of Specified Activities on Marine Mammals

    With respect to the MMPA, NMFS' effects assessment serves four 
primary purposes: (1) To prescribe the permissible methods of taking 
(i.e., Level B Harassment (behavioral harassment), Level A Harassment 
(injury), or mortality, including an identification of the number and 
types of take that could occur by Level A or B harassment or mortality) 
and to prescribe other means of affecting the least practicable adverse 
impact on such species or stock and its habitat (i.e., mitigation); (2) 
to determine whether the specified activity will have a negligible 
impact on the affected species or stocks of marine mammals (based on 
the likelihood that the activity will adversely affect the species or 
stock through effects on annual rates of recruitment or survival); (3) 
to determine whether the specified activity will have an unmitigable 
adverse impact on the availability of the species or stock(s) for 
subsistence uses (however, there are no subsistence communities that 
would be affected in the SOCAL Range Complex, so this determination is 
inapplicable for this rulemaking); and (4) to prescribe requirements 
pertaining to monitoring and reporting.
    In the Potential Effects of Specified Activities on Marine Mammals 
Section of the proposed rule NMFS included a qualitative discussion of 
the different ways that MFAS/HFAS and underwater explosive detonations 
may potentially affect marine mammals (some of which NMFS would not 
classify as harassment). See 73 FR 60836, pages 60851-60863. Marine 
mammals may experience direct physiological effects (such as threshold 
shift), acoustic masking, impaired communications, stress responses, 
and behavioral disturbance. This section also included a discussion of 
some of the suggested explanations for the association between the use 
of MFAS and marine mammal strandings (such as behaviorally-mediated 
bubble growth) that have been observed a limited number of times in 
certain circumstances (the specific events are also described). See 73 
FR 60836, pages 60859-60863. The information contained in the Potential 
Effects of Specified Activities on Marine Mammals Section from the 
proposed rule has not changed, with the exception of the following 
sentence. On page 60861, NMFS said ``Other species (Stenella 
coeruleoalba, Kogia breviceps and Balaenoptera acutorostrata) have 
stranded, but in much lower numbers and less consistently than beaked 
whales.'' As a member of the public pointed out, and as NMFS stated on 
page 60860 of the proposed rule, there was no likely association 
between the minke whale and spotted dolphin strandings referred to and 
the operation of MFAS. Therefore, the sentence should read ``Other 
species, such as Kogia breviceps, have stranded in association with the 
operation of MFAS, but in much lower numbers and less consistently than 
beaked whales.''

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    Later, in the Estimated Take of Marine Mammals section, NMFS 
relates and quantifies the potential effects to marine mammals from 
MFAS/HFAS and underwater detonation of explosives discussed here to the 
MMPA regulatory definitions of Level A and Level B Harassment. NMFS has 
also considered the effects of mortality on these species.

Mitigation

    In order to issue an incidental take authorization (ITA) under 
Section 101(a)(5)(A) of the MMPA, NMFS must prescribe regulations 
setting forth the ``permissible methods of taking pursuant to such 
activity, and other means of affecting the least practicable adverse 
impact on such species or stock and its habitat, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance.'' The NDAA of 2004 amended the MMPA as it relates to 
military readiness activities and the incidental take authorization 
process such that ``least practicable adverse impact'' shall include 
consideration of personnel safety, practicality of implementation, and 
impact on the effectiveness of the ``military readiness activity.'' The 
SOCAL Range Complex activities described in the proposed rule are 
considered military readiness activities.
    NMFS reviewed the Navy's proposed SOCAL Range Complex activities 
and the proposed SOCAL mitigation measures (which the Navy refers to as 
Protective Measures) presented in the Navy's application to determine 
whether the activities and mitigation measures were capable of 
achieving the least practicable adverse effect on marine mammals. NMFS 
determined that further discussion was necessary regarding the 
potential relationship between the operation of MFAS/HFAS and marine 
mammal strandings.
    Any mitigation measure prescribed by NMFS should be known to 
accomplish, have a reasonable likelihood of accomplishing (based on 
current science), or contribute to the accomplishment of one or more of 
the general goals listed below:
    (a) Avoidance or minimization of injury or death of marine mammals 
wherever possible (goals b, c, and d may contribute to this goal).
    (b) A reduction in the numbers of marine mammals (total number or 
number at biologically important time or location) exposed to received 
levels of MFAS/HFAS, underwater detonations, or other activities 
expected to result in the take of marine mammals (this goal may 
contribute to a, above, or to reducing harassment takes only).
    (c) A reduction in the number of times (total number or number at 
biologically important time or location) individuals would be exposed 
to received levels of MFAS/HFAS, underwater detonations, or other 
activities expected to result in the take of marine mammals (this goal 
may contribute to a, above, or to reducing harassment takes only).
    (d) A reduction in the intensity of exposures (either total number 
or number at biologically important time or location) to received 
levels of MFAS/HFAS, underwater detonations, or other activities 
expected to result in the take of marine mammals (this goal may 
contribute to a, above, or to reducing the severity of harassment takes 
only).
    (e) A reduction in adverse effects to marine mammal habitat, paying 
special attention to the food base, activities that block or limit 
passage to or from biologically important areas, permanent destruction 
of habitat, or temporary destruction/disturbance of habitat during a 
biologically important time.
    (f) For monitoring directly related to mitigation--an increase in 
the probability of detecting marine mammals, thus allowing for more 
effective implementation of the mitigation (shut-down zone, etc.).
    NMFS worked with the Navy to identify potential additional 
practicable and effective mitigation measures, which included a careful 
balancing of the likely benefit of any particular measure to the marine 
mammals with the likely effect of that measure on personnel safety, 
practicality of implementation, and impact on the ``military-readiness 
activity''. NMFS and the Navy developed a Stranding Response Plan to 
address the concern listed above.
    The Navy's proposed mitigation measures, as well as the Stranding 
Response Plan, which is required under these regulations, were 
described in detail in the proposed rule (73 FR 60836, pages 60863-
60870). The Navy's measures address personnel training, lookout and 
watchstander responsibilities, and operating procedures for activities 
using both MFAS/HFAS and explosive detonations. Three modifications 
(see below) have been made to the mitigation measures described in the 
proposed rule. The final SOCAL Stranding Response Plan, which includes 
a shutdown protocol, a stranding investigation plan, and a requirement 
for Navy and NMFS to implement an MOA that will establish a framework 
whereby the Navy can (and provide the Navy examples of how they can 
best) assist NMFS with stranding investigations in certain 
circumstances, may be viewed at: https://www.nmfs.noaa.gov/pr/permits/
incidental.htm#applications. Additionally, the mitigation measures are 
included in full in the codified text of the regulations.
    The proposed rule (the regulatory text, not the preamble) contained 
a measure in which the Navy indicated that ``prior to conducting the 
exercise, remotely sensed sea surface temperature maps would be 
reviewed. SINKEX shall not be conducted within areas where strong 
temperature discontinuities are present, thereby indicating the 
existence of oceanographic fronts.'' See 73 FR 60836, page 60904. The 
Navy included this measure in the LOA application in error. The removal 
of the measure does not change NMFS' analysis and therefore the measure 
is not included in the final rule.
    The following measure has been added to the Mitigation section of 
the regulations: Night vision goggles shall be available to all ships 
and air crews for use as appropriate.
    Last, the same mitigation measures outlined for the IEER system in 
the proposed rule will also be applied to the similar, but newly 
described, AEER system.
    NMFS has determined that the Navy's proposed mitigation measures 
(from the LOA application), along with the Stranding Response Plan (and 
when the Adaptive Management (see Adaptive Management below) component 
is taken into consideration) are adequate means of effecting the least 
practicable adverse impacts on marine mammal species or stocks and 
their habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance, while also considering 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity. The justification for 
this conclusion is discussed in the Mitigation Conclusion section of 
the proposed rule. See 73 FR 60836, pages 60870-60871. The Mitigation 
Conclusion Section of the proposed rule has not changed. Research and 
Conservation Measures for Marine Mammals.
    The Navy provides a significant amount of funding and support for 
marine research. The Navy provided $26 million in Fiscal Year 2008 and 
plans for $22 million in Fiscal Year 2009 to universities, research 
institutions, federal laboratories, private companies, and independent 
researchers around the world to study marine mammals. Over the past 
five years the Navy has funded over $100 million in marine mammal 
research.

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The U.S. Navy sponsors seventy percent of all U.S. research concerning 
the effects of human-generated sound on marine mammals and 50 percent 
of such research conducted worldwide. Major topics of Navy-supported 
research include the following:
     Better understanding of marine species distribution and 
important habitat areas,
     Developing methods to detect and monitor marine species 
before and during training,
     Understanding the effects of sound on marine mammals, sea 
turtles, fish, and birds, and
     Developing tools to model and estimate potential effects 
of sound.
    The Navy's Office of Naval Research currently coordinates six 
programs that examine the marine environment and are devoted solely to 
studying the effects of noise and/or the implementation of technology 
tools that will assist the Navy in studying and tracking marine 
mammals. The six programs are as follows:
     Environmental Consequences of Underwater Sound,
     Non-Auditory Biological Effects of Sound on Marine 
Mammals,
     Effects of Sound on the Marine Environment,
     Sensors and Models for Marine Environmental Monitoring,
     Effects of Sound on Hearing of Marine Animals, and
     Passive Acoustic Detection, Classification, and Tracking 
of Marine Mammals.
    The Navy has also developed the technical reports referenced within 
this document and the SOCAL Range Complex EIS, such as the Marine 
Resource Assessments. Furthermore, research cruises by NMFS and by 
academic institutions have received funding from the U.S. Navy.
    The Navy has sponsored several workshops to evaluate the current 
state of knowledge and potential for future acoustic monitoring of 
marine mammals. The workshops brought together acoustic experts and 
marine biologists from the Navy and other research organizations to 
present data and information on current acoustic monitoring research 
efforts and to evaluate the potential for incorporating similar 
technology and methods on instrumented ranges. However, acoustic 
detection, identification, localization, and tracking of individual 
animals still requires a significant amount of research effort to be 
considered a reliable method for marine mammal monitoring. The Navy 
supports research efforts on acoustic monitoring and will continue to 
investigate the feasibility of passive acoustics as a potential 
mitigation and monitoring tool.
    Overall, the Navy will continue to fund ongoing marine mammal 
research, and is planning to coordinate long-term monitoring/studies of 
marine mammals on various established ranges and operating areas. The 
Navy will continue to research and contribute to university/external 
research to improve the state of the science regarding marine species 
biology and acoustic effects. These efforts include mitigation and 
monitoring programs; data sharing with NMFS and via the literature for 
research and development efforts.

Long-Term Prospective Study

    Apart from this final rule, NMFS, with input and assistance from 
the Navy and several other agencies and entities, will perform a 
longitudinal observational study of marine mammal strandings to 
systematically observe and record the types of pathologies and diseases 
and investigate the relationship with potential causal factors (e.g., 
sonar, seismic surveys, weather). The proposed rule contained an 
outline of the proposed study (73 FR 60836, pages 60837-60838). No 
changes have been made to the longitudinal study as described in the 
proposed rule.

Monitoring

    In order to issue an ITA for an activity, Section 101(a)(5)(A) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking''. The MMPA implementing 
regulations at 50 CFR 216.104 (a)(13) indicate that requests for LOAs 
must include the suggested means of accomplishing the necessary 
monitoring and reporting that will result in increased knowledge of the 
species and of the level of taking or impacts on populations of marine 
mammals that are expected to be present.
    Monitoring measures prescribed by NMFS should accomplish one or 
more of the following general goals:
    (a) An increase in the probability of detecting marine mammals, 
both within the safety zone (thus allowing for more effective 
implementation of the mitigation) and in general to generate more data 
to contribute to the effects analyses.
    (b) An increase in our understanding of how many marine mammals are 
likely to be exposed to levels of MFAS/HFAS (or explosives or other 
stimuli) that we associate with specific adverse effects, such as 
behavioral harassment, TTS, or PTS.
    (c) An increase in our understanding of how marine mammals respond 
(behaviorally or physiologically) to MFAS/HFAS (at specific received 
levels), explosives, or other stimuli expected to result in take and 
how anticipated adverse effects on individuals (in different ways and 
to varying degrees) may impact the population, species, or stock 
(specifically through effects on annual rates of recruitment or 
survival).
    (d) An increased knowledge of the affected species.
    (e) An increase in our understanding of the effectiveness of 
certain mitigation and monitoring measures.
    (f) A better understanding and record of the manner in which the 
authorized entity complies with the incidental take authorization.

Proposed Monitoring Plan for the SOCAL Range Complex

    As NMFS indicated in the proposed rule, the Navy has (with input 
from NMFS) fleshed out the details of and made improvements to the 
SOCAL Range Complex Marine Mammal and Sea Turtle Monitoring Plan 
(Monitoring Plan). Additionally, NMFS and the Navy have incorporated a 
recommendation from the public, which recommended the Navy hold a 
workshop to discuss the Navy's Monitoring Plan (see Monitoring Workshop 
section). The final SOCAL Range Complex Monitoring Plan, which is 
summarized below may be viewed at https://www.nmfs.noaa.gov/pr/permits/
incidental.htm#applications. The Navy plans to implement all of the 
components of the Monitoring Plan; however, only the marine mammal 
components (not the sea turtle components) will be required by the MMPA 
regulations and associated LOAs.
    The draft Monitoring Plan for the SOCAL Range Complex has been 
designed as a collection of focused ``studies'' (described fully in the 
SOCAL Range Complex Monitoring Plan) to gather data that will allow the 
Navy to address the following questions:
    (1) Are marine mammals and sea turtles exposed to MFAS, especially 
at levels associated with adverse effects (i.e., based on NMFS' 
criteria for behavioral harassment, TTS, or PTS)? If so, at what levels 
are they exposed?
    (2) If marine mammals and sea turtles are exposed to MFAS in the 
SOCAL Range Complex, do they redistribute geographically as a result of 
continued exposure? If so, how long does the redistribution last?
    (3) If marine mammals and sea turtles are exposed to MFAS, what are 
their behavioral responses to various levels?

[[Page 3888]]

    (4) What are the behavioral responses of marine mammals and sea 
turtles that are exposed to explosives at specific levels?
    (5) Is the Navy's suite of mitigation measures for MFAS and 
explosives (e.g., PMAP, major exercise measures agreed to by the Navy 
through permitting) effective at avoiding TTS, injury, and mortality of 
marine mammals and sea turtles?
    Data gathered in these studies will be collected by qualified, 
professional marine mammal biologists that are experts in their field. 
They will use a combination of the following methods to collect data:
     Visual Surveys--Vessel and aerial.
     Passive Acoustic Monitoring (PAM), including working with 
the passive acoustic detection capabilities of Navy's SOAR fixed range.
     Marine Mammal Observers (MMOs) on Navy Vessels.
     Marine Mammal Tagging.
    In the five proposed study designs (all of which cover multiple 
years), the above methods will be used separately or in combination to 
monitor marine mammals in different combinations before, during, and 
after activities utilizing MFAS/HFAS or explosive detonations. Table 5 
contains a summary of the monitoring effort that is planned for each 
study in each year (effort may vary slightly between years or study 
type, but overall effort will remain constant). The SOCAL Range Complex 
Monitoring Plan is designed to collect data on all marine mammals and 
sea turtles encountered during monitoring studies. However, priority 
will be given to ESA-listed species and taxa in which MFAS exposure, 
under certain circumstances and strandings have been linked (beaked 
whales and other deep-diving species).
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Monitoring Workshop

    During the public comment period on the SOCAL Range Complex 
proposed rule (as well as the Hawaii Range Complex proposed rule), NMFS 
received a comment which, in consultation with the Navy, we have chosen 
to incorporate into the final rule (in a modified form). One commenter 
recommended that a workshop or panel be convened to solicit input on 
the monitoring plan from researchers, experts, and other interested 
parties. The SOCAL Range Complex proposed rule included an adaptive 
management component and both NMFS and the Navy believe that a workshop 
would provide a means for Navy and NMFS to consider input from 
participants in determining whether or how to modify monitoring 
techniques to more effectively accomplish the goals of monitoring set 
forth earlier in the document. NMFS and the Navy believe that this 
workshop concept is valuable in relation to all of the Range Complexes 
and major training exercise rules and LOAs that NMFS is working on with 
the Navy at this time, and consequently this single Monitoring Workshop 
will be included as a component of all of the rules and LOAs that NMFS 
will be processing for the Navy in the next year or so.
    The Navy, with guidance and support from NMFS, will convene a 
Monitoring Workshop, including marine mammal and acoustic experts as 
well as other interested parties, in 2011. The Monitoring Workshop 
participants will review the monitoring results from the previous two 
years of monitoring pursuant to the SOCAL Range Complex rule as well as 
monitoring results from other Navy rules and LOAs (e.g., the Atlantic 
Fleet Active Sonar Training, Hawaii Range Complex (HRC), and other 
rules). The Monitoring Workshop participants would provide their 
individual recommendations to the Navy and NMFS on the monitoring 
plan(s) after also considering the current science (including Navy 
research and development) and working within the framework of available 
resources and feasibility of implementation. NMFS and the Navy would 
then analyze the input from the Monitoring Workshop participants and 
determine the best way forward from a national perspective. Subsequent 
to the Monitoring Workshop, modifications would be applied to 
monitoring plans as appropriate.

Integrated Comprehensive Monitoring Program

    In addition to the Monitoring Plan for the SOCAL Range Complex, the 
Navy will complete the Integrated Comprehensive Monitoring Program 
(ICMP) Plan by the end of 2009. The ICMP will provide the overarching 
coordination that will support compilation of data from range-specific 
monitoring plans (e.g., SOCAL Range Complex plan) as well as Navy 
funded research and development (R&D) studies. The ICMP will coordinate 
the monitoring program's progress towards meeting its goals and develop 
a data management plan. The ICMP will be evaluated annually to provide 
a matrix for progress and goals for the following year, and will make 
recommendations on adaptive management for refinement and analysis of 
the monitoring methods.
    The primary objectives of the ICMP are to:
     Monitor and assess the effects of Navy activities on 
protected species;
     Ensure that data collected at multiple locations is 
collected in a manner that allows comparison between and among 
different geographic locations;
     Assess the efficacy and practicality of the monitoring and 
mitigation techniques;
     Add to the overall knowledge-base of marine species and 
the effects of Navy activities on marine species.
    The ICMP will be used both as: (1) A planning tool to focus Navy 
monitoring priorities (pursuant to ESA/MMPA requirements) across Navy 
Range Complexes and Exercises; and (2) an adaptive management tool, 
through the consolidation and analysis of the Navy's monitoring and 
watchstander data, as well as new information from other Navy programs 
(e.g., R&D), and other appropriate newly published information.
    In combination with the 2011 Monitoring Workshop and the adaptive 
management component of the SOCAL Range Complex rule and the other 
planned Navy rules (e.g., AFAST and HRC), the ICMP could potentially 
provide a framework for restructuring the monitoring plans and 
allocating monitoring effort based on the value of particular specific 
monitoring proposals (in terms of the degree to which results would 
likely contribute to stated monitoring goals, as well as the likely 
technical success of the monitoring based on a review of past 
monitoring results) that have been developed through the ICMP 
framework, instead of allocating based on maintaining an equal (or 
commensurate to effects) distribution of monitoring effort across Range 
complexes. For example, if careful prioritization and planning through 
the ICMP (which would include a review of both past monitoring results 
and current scientific developments) were to show that a large, intense 
monitoring effort in Hawaii would likely provide extensive, robust and 
much-needed data that could be used to understand the effects of sonar 
throughout different geographical areas, it may be appropriate to have 
other Range Complexes dedicate money, resources, or staff to the 
specific monitoring proposal identified as ``high priority'' by the 
Navy and NMFS, in lieu of focusing on smaller, lower priority projects 
divided throughout their home Range Complexes.
    The ICMP will identify:
     A means by which NMFS and the Navy would jointly consider 
the previous year's monitoring results and advancing science to 
determine if modifications are needed in mitigation or monitoring 
measures to better effect the goals laid out in the Mitigation and 
Monitoring sections of the SOCAL Range Complex rule.
     Guidelines for prioritizing monitoring projects.
     If, as a result of the workshop and similar to the example 
described in the paragraph above, the Navy and NMFS decide it is 
appropriate to restructure the monitoring plans for multiple ranges 
such that they are no longer evenly allocated (by Range Complex), but 
rather focused on priority monitoring projects that are not necessarily 
tied to the geographic area addressed in the rule, the ICMP will be 
modified to include a very clear and unclassified record-keeping system 
that will allow NMFS and the public to see how each Range Complex/
project is contributing to all of the ongoing monitoring (resources, 
effort, money, etc.).

Past Monitoring in the SOCAL Range Complex

    The proposed rule contained a detailed review of the previous 
marine mammal monitoring conducted in the SOCAL Range Complex, which 
was conducted in compliance with the terms and conditions of multiple 
biological opinions issued for MFAS activities (73 FR 60836, pages 
60873-60875). No changes have been made to the discussion contained in 
the proposed rule.

Adaptive Management

    The final regulations governing the take of marine mammals 
incidental to Navy activities in the SOCAL Range Complex will contain 
an adaptive

[[Page 3890]]

management component. Our understanding of the effects of MFAS/HFAS and 
explosives on marine mammals is still in its relative infancy, and yet 
the science in this field continues to improve. These circumstances 
make the inclusion of an adaptive management component both valuable 
and necessary within the context of 5-year regulations for activities 
that have been associated with marine mammal mortality in certain 
circumstances and locations (though not the SOCAL Range Complex). The 
use of adaptive management will give NMFS the ability to consider new 
data from different sources to determine (in coordination with the 
Navy) on an annual basis if mitigation or monitoring measures should be 
modified or added (or deleted) if new data suggests that such 
modifications are appropriate (or are not appropriate) for subsequent 
annual LOAs.
    Following are some of the possible sources of applicable data:
     Results from the Navy's monitoring from the previous year 
(either from the SOCAL Range Complex or other locations).
     Findings of the Workshop that the Navy will convene in 
2011 to analyze monitoring results to date, review current science, and 
recommend modifications, as appropriate to the monitoring protocols to 
increase monitoring effectiveness.
     Compiled results of Navy funded research and development 
(R&D) studies (presented pursuant to the ICMP, which is discussed 
elsewhere in this document).
     Results from specific stranding investigations (either 
from the SOCAL Range Complex or other locations, involving the 
coincident MFAS/HFAS of explosives training or not involving the 
coincident use).
     Results from the Long Term Prospective Study described 
below.
     Results from general marine mammal and sound research 
(funded by the Navy (described below) or otherwise).
    Mitigation measures could be modified or added (or deleted) if new 
data suggests that such modifications would have (or do not have) a 
reasonable likelihood of accomplishing the goals of mitigation laid out 
in this final rule and if the measures are practicable. NMFS would also 
coordinate with the Navy to modify or add to (or delete) the existing 
monitoring requirements if the new data suggest that the addition of 
(or deletion of) a particular measure would more effectively accomplish 
the goals of monitoring laid out in this final rule. The reporting 
requirements associated with this rule are designed to provide NMFS 
with monitoring data from the previous year to allow NMFS to consider 
the data and issue annual LOAs. NMFS and the Navy will meet annually 
(prior to LOA issuance, except in the year of the Monitoring Workshop) 
to discuss the monitoring reports, Navy R&D developments, and current 
science and whether mitigation or monitoring modifications are 
appropriate.

Reporting

    In order to issue an ITA for an activity, Section 101(a)(5)(A) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking''. Effective reporting is 
critical to ensure compliance with the terms and conditions of an LOA, 
and to provide NMFS and the Navy with data of the highest quality based 
on the required monitoring.
    As NMFS noted in its proposed rule, additional detail has been 
added to the reporting requirements since they were outlined in the 
proposed rule. The updated reporting requirements are all included 
below. A subset of the information provided in the monitoring reports 
may be classified and not releasable to the public.
    NMFS will work with the Navy to develop tables that allow for 
efficient submission of the information required below.

General Notification of Injured or Dead Marine Mammals

    Navy personnel will ensure that NMFS (regional stranding 
coordinator) is notified immediately (or as soon as operational 
security allows) if an injured or dead marine mammal is found during or 
shortly after, and in the vicinity of, any Navy training exercise 
utilizing MFAS, HFAS, or underwater explosive detonations. The Navy 
will provide NMFS with species or description of the animal(s), the 
condition of the animal(s) (including carcass condition if the animal 
is dead), location, time of first discovery, observed behaviors (if 
alive), and photo or video (if available). The Stranding Response Plan 
contains more specific reporting requirements for specific 
circumstances.

Annual SOCAL Range Complex Monitoring Plan Report

    The Navy shall submit a report annually on October 1 describing the 
implementation and results (through August 1 of the same year) of the 
SOCAL Range Complex Monitoring Plan, described above. Data collection 
methods will be standardized across range complexes to allow for 
comparison in different geographic locations. Although additional 
information will also be gathered, marine mammal observers (MMOs) 
collecting marine mammal data pursuant to the SOCAL Range Complex 
Monitoring Plan shall, at a minimum, provide the same marine mammal 
observation data required in the MFAS/HFAS major Training Exercises 
section of the Annual SOCAL Range Complex Exercise Report referenced 
below.
    The SOCAL Range Complex Monitoring Plan Report may be provided to 
NMFS within a larger report that includes the required Monitoring Plan 
Reports from multiple Range Complexes.

Annual SOCAL Range Complex Exercise Report

    The Navy will submit an Annual SOCAL Range Complex Exercise Report 
on October 1 of every year (covering data gathered through August 1). 
This report shall contain the subsections and information indicated 
below.
MFAS/HFAS Major Training Exercises
    This section shall contain the following information for 
Integrated, Coordinated, and Major Training Exercises (MTEs), which 
include Ship ASW Readiness and Evaluation Measuring (SHAREM), 
Sustainment Exercises, Integrated ASW Course Phase II (IAC2), Composite 
Training Unit Exercises (COMPTUEX), and Joint Task Force Exercises 
(JTFEX) conducted in the SOCAL Range Complex:
    (a) Exercise Information (for each MTE):


(i) Exercise designator.
(ii) Date that exercise began and ended.
(iii) Location.
(iv) Number and types of active sources used in the exercise.
(v) Number and types of passive acoustic sources used in exercise.
(vi) Number and types of vessels, aircraft, etc., participating in 
exercise.
(vii) Total hours of observation by watchstanders.
(viii) Total hours of all active sonar source operation.
(ix) Total hours of each active sonar source (along with explanation of 
how hours are calculated for sources typically quantified in alternate 
way (buoys, torpedoes, etc.)).
(x) Wave height (high, low, and average during exercise).

    (b) Individual marine mammal sighting info (for each sighting in 
each MTE):


[[Page 3891]]


(i) Location of sighting.
(ii) Species (if not possible--indication of whale/dolphin/pinniped).
(iii) Number of individuals.
(iv) Calves observed (y/n).
(v) Initial Detection Sensor.
(vi) Indication of specific type of platform observation made from 
(including, for example, what type of surface vessel, i.e., FFG, DDG, 
or CG).
(vii) Length of time observers maintained visual contact with marine 
mammal(s).
(viii) Wave height (in feet).
(ix) Visibility.
(x) Sonar source in use (y/n).
(xi) Indication of whether animal is <200yd, 200-500yd, 500-1000yd, 
1000-2000yd, or >2000yd from sonar source in (x) above.
(xiii) Mitigation Implementation--Whether operation of sonar sensor was 
delayed, or sonar was powered or shut down, and how long the delay was.
(xiv) If source in use (x) is hullmounted, true bearing of animal from 
ship, true direction of ship's travel, and estimation of animal's 
motion relative to ship (opening, closing, parallel).
(xv) Observed behavior--Watchstanders shall report, in plain language 
and without trying to categorize in any way, the observed behavior of 
the animals (such as animal closing to bow ride, paralleling course/
speed, floating on surface and not swimming, etc.).

    (c) An evaluation (based on data gathered during all of the MTEs) 
of the effectiveness of mitigation measures designed to avoid exposing 
animals to mid-frequency sonar. This evaluation shall identify the 
specific observations that support any conclusions the Navy reaches 
about the effectiveness of the mitigation.
ASW Summary
    This section shall include the following information as summarized 
from both MTEs and non-major training exercises (unit-level exercises, 
such as TRACKEXs):
    (i) Total annual hours of each type of sonar source (along with 
explanation of how hours are calculated for sources typically 
quantified in alternate way (buoys, torpedoes, etc.)).
    (iv) Cumulative Impact Report--To the extent practicable, the Navy, 
in coordination with NMFS, shall develop and implement a method of 
annually reporting non-major (i.e., other than MTEs) training exercises 
utilizing hull-mounted sonar. The report shall present an annual (and 
seasonal, where practicable) depiction of non-major training exercises 
geographically across the SOCAL Range Complex. The Navy shall include 
(in the SOCAL Range Complex annual report) a brief annual progress 
update on the status of the development of an effective and 
unclassified method to report this information until an agreed-upon 
(with NMFS) method has been developed and implemented.
SINKEXs
    This section shall include the following information for each 
SINKEX completed that year:
    (a) Exercise info:

(i) Location.
(ii) Date and time exercise began and ended.
(iii) Total hours of observation by watchstanders before, during, and 
after exercise.
(iv) Total number and types of rounds expended/explosives detonated.
(v) Number and types of passive acoustic sources used in exercise.
(vi) Total hours of passive acoustic search time.
(vii) Number and types of vessels, aircraft, etc., participating in 
exercise.
(viii) Wave height in feet (high, low and average during exercise).
(ix) Narrative description of sensors and platforms utilized for marine 
mammal detection and timeline illustrating how marine mammal detection 
was conducted.

    (b) Individual marine mammal observation (by Navy lookouts) info:

(i) Location of sighting.
(ii) Species (if not possible--indication of whale/dolphin/pinniped).
(iii) Number of individuals.
(iv) Calves observed (y/n).
(v) Initial detection sensor.
(vi) Length of time observers maintained visual contact with marine 
mammal.
(vii) Wave height.
(viii) Visibility.
(ix) Whether sighting was before, during, or after detonations/
exercise, and how many minutes before or after.
(x) Distance of marine mammal from actual detonations (or target spot 
if not yet detonated)--use four categories to define distance: (1) The 
modeled injury threshold radius for the largest explosive used in that 
exercise type in that OPAREA (738 m for SINKEX in the SOCAL Range 
Complex); (2) the required exclusion zone (1 nm for SINKEX in SOCAL 
Range Complex); (3) the required observation distance (if different 
than the exclusion zone (2 nm for SINKEX in SOCAL Range Complex); and 
(4) greater than the required observed distance. For example, in this 
case, the observer would indicate if < 738 m, from 738 m-1 nm, from 1 
nm-2 nm, and > 2 nm.
(xi) Observed behavior--Watchstanders will report, in plain language 
and without trying to categorize in any way, the observed behavior of 
the animals (such as animal closing to bow ride, paralleling course/
speed, floating on surface and not swimming etc.), including speed and 
direction.
(xii) Resulting mitigation implementation--Indicate whether explosive 
detonations were delayed, ceased, modified, or not modified due to 
marine mammal presence and for how long.
(xiii) If observation occurs while explosives are detonating in the 
water, indicate munition type in use at time of marine mammal 
detection.
Improved Extended Echo-Ranging System (IEER) and Advanced Extended 
Echo-Ranging System (AEER) Summary
    This section shall include an annual summary of the following IEER/
AEER information:

(i) Total number of IEER and AEER events conducted in the SOCAL Range 
Complex.
(ii) Total expended/detonated rounds (buoys).
(iii) Total number of self-scuttled IEER rounds.
Explosives Summary
    The Navy is in the process of improving the methods used to track 
explosive use to provide increased granularity. To the extent 
practicable, the Navy will provide the information described below for 
all of their explosive exercises. Until the Navy is able to report in 
full the information below, they will provide an annual update on the 
Navy's explosive tracking methods, including improvements from the 
previous year.

(i) Total annual number of each type of explosive exercise (of those 
identified as part of the ``specified activity'' in this final rule) 
conducted in the SOCAL Range Complex.
(ii) Total annual expended/detonated rounds (missiles, bombs, etc.) for 
each explosive type.

[[Page 3892]]

Sonar Exercise Notification

    The Navy shall submit to the NMFS Office of Protected Resources 
(specific contact information to be provided in LOA) either an 
electronic (preferably) or verbal report within fifteen calendar days 
after the completion of any MTE (Sustainment, IAC2, SHAREM, COMPTUEX, 
or JTFEX) indicating:
    (1) Location of the exercise.
    (2) Beginning and end dates of the exercise.
    (3) Type of exercise.

SOCAL Range Complex 5-Yr Comprehensive Report

    The Navy shall submit to NMFS a draft report that analyzes and 
summarizes all of the multi-year marine mammal information gathered 
during ASW and explosive exercises for which annual reports are 
required (Annual SOCAL Range Complex Exercise Reports and SOCAL Range 
Complex Monitoring Plan Reports). This report will be submitted at the 
end of the fourth year of the rule (November 2012), covering activities 
that have occurred through June 1, 2012.

Comprehensive National ASW Report

    By June, 2014, the Navy shall submit a draft National Report that 
analyzes, compares, and summarizes the active sonar data gathered 
(through January 1, 2014) from the watchstanders and pursuant to the 
implementation of the Monitoring Plans for the SOCAL Range Complex, the 
Atlantic Fleet Active Sonar Training, the HRC, the Marianas Range 
Complex, the Northwest Training Range, the Gulf of Alaska, and the East 
Coast Undersea Warfare Training Range.
    The Navy shall respond to NMFS comments and requests for additional 
information or clarification on the SOCAL Range Complex Comprehensive 
Report, the Comprehensive National ASW report, the Annual SOCAL Range 
Complex Exercise Report, or the Annual SOCAL Range Complex Monitoring 
Plan Report (or the multi-Range Complex Annual Monitoring Plan Report, 
if that is how the Navy chooses to submit the information) if submitted 
within 3 months of receipt. These reports will be considered final 
after the Navy has addressed NMFS' comments or provided the requested 
information, or three months after the submittal of the draft if NMFS 
does not comment by then.

SOCAL

Comments and Responses

    On October 14, 2008 (73 FR 60836), NMFS published a proposed rule 
in response to the Navy's request to take marine mammals incidental to 
military readiness training exercises in SOCAL and requested comments, 
information and suggestions concerning the request. During the 30-day 
public comment period, NMFS received 8 comments from private citizens, 
comments from the Marine Mammal Commission (MMC) and several sets of 
comments from non-governmental organizations, including, the Natural 
Resources Defense Council (NRDC) (which commented on behalf of The 
Humane Society of the United States, the International Fund for Animal 
Welfare, Whale and Dolphin Conservation Society, Cetacean Society 
International, Pamlico Tar River Foundation, League for Coastal 
Protection, and Ocean Futures Society and its founder Jean-Michel 
Cousteau), the Cascadia Research Collective (CRC), Ziphius EcoServices, 
and Smultea Environmental Sciences, LLC. The comments are summarized 
and sorted into general topic areas and are addressed below. Full 
copies of the comment letters may be accessed at www.regulations.gov.

Monitoring and Reporting

    Comment 1: One commenter stated that ``It is advisable to hold a 
multi-day workshop to discuss controversial issues related to the 
problem.'' The commenter further indicated that the workshop should 
include representatives from the Navy, NMFS, relevant marine mammal 
researchers, NGOs (e.g., NRDC), and invited experts on certain topics 
of interest. The goal of the workshop should be to move towards 
consensus on a way forward for the monitoring plan. Another commenter 
suggested that outside expert review of the ICMP by professional marine 
mammal biologists was needed.
    Response: NMFS believes that a workshop consisting of the Navy, 
NMFS, researchers, invited experts, and other interested parties, in 
combination with an adaptive management plan that allows for 
modification to the monitoring plan, would provide a means for the Navy 
to potentially make changes to the Monitoring Plan that would more 
effectively accomplish some of the goals of monitoring set forth 
earlier in the Monitoring section. NMFS and the Navy have coordinated 
on this point and the Navy will convene a workshop, to include (among 
others) outside marine mammal experts, in 2011. The workshop and how it 
will interact with the adaptive management component are discussed in 
the Monitoring Workshop section of this final rule. The Monitoring 
Workshop participants will be asked to submit individual 
recommendations to the Navy and NMFS, and both agencies will work 
together to determine whether modifications to the SOCAL Range Complex 
monitoring are necessary based on the recommendations. As necessary, 
NMFS would incorporate any changes into future LOAs and future rules. 
However, NMFS disagrees with the commenter's suggestion that the 
workshop participants seek to achieve consensus on a way forward for 
the monitoring plan. NMFS has statutory responsibility to prescribe 
regulations pertaining to monitoring and reporting, and will in 
coordination with the Navy, develop the most effective and appropriate 
monitoring and reporting protocols for future authorizations.
    Comment 2: Two commenters made several recommendations regarding 
the formatting and understandability of the monitoring plan, including 
recommending additional text. For example, one commenter recommended 
the Navy add a list of acronyms and another recommended adding text 
explaining that dropping sonobuoys from monitoring observation aircraft 
is another potential method of PAM whose feasibility and utility should 
be assessed as part of the SCMP.
    Response: NMFS and the Navy incorporated these recommendations 
where appropriate. For example, both of the above examples were 
incorporated. However, we did not incorporate the commenter's 
recommendations in all cases, if we believed doing so, for example, 
would needlessly lengthen and complicate the Plan or generally be 
duplicative with the analytical contents of the rule.
    Comment 3: One commenter stated: ``The Navy improperly assumes that 
they have no impact on the marine mammals. It is clear that the draft 
plan begins with the assumption that the Navy has no impact on marine 
mammals, or that the current mitigation is adequate to eliminate 
impacts. This is not supported by facts, and it invalidates the entire 
purpose of the plan. The Navy must acknowledge that sonar testing may 
indeed impact marine mammals and provide references, and must be 
willing to work as an active partner in a plan to investigate the 
extent and severity of such impacts, and how to reduce them to 
insignificant levels. Otherwise, this entire exercise is just `window 
dressing' and will be a major waste of taxpayer dollars.''
    Response: NMFS disagrees with this commenter's assertion. It is 
possible that the commenter mistook the fact that the Navy phrased some 
of their goals as null hypotheses (``If marine mammals and

[[Page 3893]]

sea turtles are exposed to MFAS, what are their behavioral responses? 
Are they different at various levels?'') to mean that they think there 
are no effects. The Navy's LOA application and EIS clearly discuss the 
potential adverse effects that marine mammals may experience when 
exposed to MFAS/HFAS and explosive detonations. The Navy has and will 
continue to work as an active partner to investigate the extent and 
severity of the impacts and how to reduce them (see Navy Research 
section of this final rule).
    Regarding the issue of the mitigation being adequate to eliminate 
impacts, nowhere does either the Navy or NMFS indicate that the current 
mitigation will eliminate impacts. The MMPA requires that NMFS put 
forth the means of effecting the least practicable adverse impacts. As 
discussed in the Mitigation section of the proposed rule, NMFS has 
determined that the final required mitigation accomplishes this. If it 
were possible to eliminate impacts to marine mammals, an MMPA 
authorization would not be necessary.
    Comment 4: Two commenters were concerned that the Navy used the 
term ``relative distance'' when describing the data that would be 
gathered for marine mammals and sound sources and indicated that 
precise measurements are needed to draw accurate conclusions.
    Response: GPS measurements are used for the majority of Navy data, 
both for ship tracks and marine mammal sightings. The word ``relative'' 
was used because in some cases the Navy cannot report exactly where 
their exercise is for security reasons, but they can report exactly 
where the marine mammal was relative to the sound source.
    Comment 5: A few commenters asked why the Navy did not consider 
additional survey methods, or modifications to the existing methods, 
beyond those currently included in the plan, such as: dropping 
sonobuoys from airplanes, specified focal follows of one animal before, 
during, and after sonar; photo-identification of marine mammals to look 
at residency patterns; or doing biopsy sampling to assess stress 
hormones.
    Response: There are many different methods available with which to 
monitor marine mammals and the Navy considered a wide range of methods 
in the development of their plan. NMFS considered all of the public 
comments (including the recommended additional survey methods) received 
during this rulemaking. Some of the methods suggested by the public, 
such as the photo-identification method, would likely be feasible and 
provide useful information (and in fact, the Navy will take photographs 
whenever feasible), while other methods, such as biopsy sampling (which 
would require a new research permit), would be more difficult both 
financially and operationally. Nevertheless, the Navy must work within 
the framework of the available resources and the operational 
constraints associated with doing work in the vicinity of a complex 
military exercise. NMFS provided input during the development of the 
plan and believes that results from the required monitoring will 
provide valuable information regarding the effects of MFAS on marine 
mammals. Additionally, by including the Monitoring Plan as a 
requirement of the regulations and LOA, NMFS is compliant with the MMPA 
requirement to prescribe regulations setting forth the requirements 
pertaining to the monitoring and reporting of taking. That being said, 
the Navy and NMFS understand the importance of marine mammal monitoring 
to determine the effects of MFAS, which is why the Navy agreed to 
conduct the Workshop referred to in Comment 1 during which the 
workshop participants will review and assess the monitoring results 
(from this Monitoring Plan and others from other Range complexes and 
areas) and make informed recommendations for how to move forward with 
the best monitoring strategy.
    Comment 6: One commenter asked that the Navy specify somewhere in 
the Monitoring Plan that any potentially stranded animals will be 
photographed for individual identification purposes.
    Response: When possible, every attempt will be made to 
opportunistically collect concurrent digital video and digital 
photographs of animals under observation by both vessels and aircraft. 
Direct experience with aerial monitoring within the Hawaii and SOCAL 
Range Complexes in 2008 revealed the value of these techniques for on-
site and off-site species identification or confirmation, and for 
assistance in reviewing a given animal's behavioral state after the 
survey. Language to this effect has been added to the Monitoring Plan.
    Comment 7: One commenter questioned who will conduct the Adaptive 
Management Review and whether professional marine mammal and sea turtle 
biologists will be involved as advisors on a regular basis.
    Response: The NMFS and the Navy will conduct the Adaptive 
Management Reassessment review to examine the prior year's monitoring 
lessons learned, integrate new science, and re-direct monitoring based 
on input from the scientific community. As mentioned in comment 1, 
professional marine mammal biologists will be involved in the 2011 
Monitoring Workshop.
    Comment 8: One commenter noted that there is a lot of emphasis on 
collection of data by Navy watchstanders, but the Navy must acknowledge 
the limitation of these kinds of data. The relatively low level of 
training and experience by these people (in relation to professional 
marine mammal biologists) will make the data collected of little value. 
Another commenter similarly notes that the marine species awareness 
training consists primarily of watching a DVD, which is insufficient to 
ensure that they accurately detect many species.
    Response: Th